© 2005 Snell & Wilmer L.L.P. SAFETY AND OTHER EMPLOYMENT ISSUES CONFRONTING EMPLOYERS REGARDING TELECOMMUTING Presentation By: Charles P. Keller, Esq.

© 2005 Snell & Wilmer L.L.P.

“SAFETY AND OTHEREMPLOYMENT ISSUES CONFRONTING

EMPLOYERS REGARDING TELECOMMUTING”

“SAFETY AND OTHEREMPLOYMENT ISSUES CONFRONTING

EMPLOYERS REGARDING TELECOMMUTING”

Presentation By:

Charles P. Keller, Esq. Snell & Wilmer, L.L.P.

Phoenix, Arizona (602) [email protected]

www.oshalawyer.net

Presentation By:

Charles P. Keller, Esq. Snell & Wilmer, L.L.P.

Phoenix, Arizona (602) [email protected]

www.oshalawyer.net

© 2005 Snell & Wilmer L.L.P.

I. HISTORYI. HISTORY

A. In a November 15, 1999 letter of interpretation, the OSHA Director of Compliance stated:

OSHA Act applies to work performed by an employee in any workplace including workplaces located in an employee’s home.

Employer must retain some degree of control over the conditions of the work at home employee.

This included control over ergonomic, air quality, lighting, and heating issues.

A. In a November 15, 1999 letter of interpretation, the OSHA Director of Compliance stated:

OSHA Act applies to work performed by an employee in any workplace including workplaces located in an employee’s home.

Employer must retain some degree of control over the conditions of the work at home employee.

This included control over ergonomic, air quality, lighting, and heating issues.

© 2005 Snell & Wilmer L.L.P.

I. HISTORY, (cont’d)I. HISTORY, (cont’d)

B. As soon as this letter was published, business leaders, lawmakers, and employers expressed “shock and surprise.”

C. It took one day for then Secretary Alexis Herman to withdraw the policy interpretation.

D. Query—was Richard Fairfax correct?

B. As soon as this letter was published, business leaders, lawmakers, and employers expressed “shock and surprise.”

C. It took one day for then Secretary Alexis Herman to withdraw the policy interpretation.

D. Query—was Richard Fairfax correct?

© 2005 Snell & Wilmer L.L.P.

II. CAN ADOSH INSPECT THETELECOMMUTER’S WORKAREA?

II. CAN ADOSH INSPECT THETELECOMMUTER’S WORKAREA?

A. Is the telecommuter an employee? A.R.S. § 23-401(6)—”employee” means any

person performing services for an employer.B. Is the telecommuter’s home a workplace?

A.R.S. § 23-401(15)—”workplace” means a location or site wherein work is being conducted in connection with a business.

A. Is the telecommuter an employee? A.R.S. § 23-401(6)—”employee” means any

person performing services for an employer.B. Is the telecommuter’s home a workplace?

A.R.S. § 23-401(15)—”workplace” means a location or site wherein work is being conducted in connection with a business.

© 2005 Snell & Wilmer L.L.P.

II. CAN ADOSH INSPECT THETELECOMMUTER’S WORKAREA? (cont’d)

II. CAN ADOSH INSPECT THETELECOMMUTER’S WORKAREA? (cont’d)

C. Is the telecommuter’s home subject to inspection?

A.R.S. § 23-408(A)—ADOSH may, upon presentation of credentials, shall be permitted to inspect places of employment, question employees, and investigate conditions, practices or matters in connection with employment.

C. Is the telecommuter’s home subject to inspection?

A.R.S. § 23-408(A)—ADOSH may, upon presentation of credentials, shall be permitted to inspect places of employment, question employees, and investigate conditions, practices or matters in connection with employment.

© 2005 Snell & Wilmer L.L.P.

II. CAN ADOSH INSPECT THETELECOMMUTER’S WORKAREA? (cont’d)

II. CAN ADOSH INSPECT THETELECOMMUTER’S WORKAREA? (cont’d)

D. Clearly, legally speaking, ADOSH has the right to conduct an inspection of a telecommuter’s workplace inside a private home.

The area defined as the workplace must comply with the OSHA standards.

E. 2000 interpretation—OSHA stated: An employer is responsible for ensuring that its

employees have a safe and healthful workplace, not a safe and healthful home.

D. Clearly, legally speaking, ADOSH has the right to conduct an inspection of a telecommuter’s workplace inside a private home.

The area defined as the workplace must comply with the OSHA standards.

E. 2000 interpretation—OSHA stated: An employer is responsible for ensuring that its

employees have a safe and healthful workplace, not a safe and healthful home.

© 2005 Snell & Wilmer L.L.P.

III. PRACTICAL RAMIFICATIONSIII. PRACTICAL RAMIFICATIONS

A. ADOSH is not going to conduct random inspections of telecommuter’s home.

B. Two circumstances where ADOSH may inspect a home:

Home-based business with employees working in hazardous conditions.

Telecommuter contacts ADOSH and files a complaint.

A. ADOSH is not going to conduct random inspections of telecommuter’s home.

B. Two circumstances where ADOSH may inspect a home:

Home-based business with employees working in hazardous conditions.

Telecommuter contacts ADOSH and files a complaint.

© 2005 Snell & Wilmer L.L.P.

IV. OTHER AREAS OF GREATER CONCERN

IV. OTHER AREAS OF GREATER CONCERN

A. Fair Labor Standards Act Wage and hour issues Exempt v. non-exempt Required to keep accurate time records Non-exempt—it is the employer’s burden to

track hoursB. Workers’ Compensation Claims

A. Fair Labor Standards Act Wage and hour issues Exempt v. non-exempt Required to keep accurate time records Non-exempt—it is the employer’s burden to

track hoursB. Workers’ Compensation Claims

© 2005 Snell & Wilmer L.L.P.

IV. OTHER AREAS OF GREATER CONCERN, (cont’d)

IV. OTHER AREAS OF GREATER CONCERN, (cont’d)

C. Americans with Disabilities Act (“ADA”) Required to make reasonable accommodations for

qualified individuals with a disability.

D. National Labor Relations Act (“NLRA”) May jeopardize rules regarding e-mail use. Rules that prohibit use of company e-mail for non-

business purposes may be overbroad. Telecommuters only method of communication with

other employees may be through e-mail. NLRA—protects concerted and protected activities.

C. Americans with Disabilities Act (“ADA”) Required to make reasonable accommodations for

qualified individuals with a disability.

D. National Labor Relations Act (“NLRA”) May jeopardize rules regarding e-mail use. Rules that prohibit use of company e-mail for non-

business purposes may be overbroad. Telecommuters only method of communication with

other employees may be through e-mail. NLRA—protects concerted and protected activities.

© 2005 Snell & Wilmer L.L.P.

V. EMPLOYERS’ RESPONSESV. EMPLOYERS’ RESPONSES

A. Employers do not have to permit telecommuting:

Can restrict it Certain employees Employees in good standing

Can withdraw permission Can prohibit it

A. Employers do not have to permit telecommuting:

Can restrict it Certain employees Employees in good standing

Can withdraw permission Can prohibit it

© 2005 Snell & Wilmer L.L.P.

V. EMPLOYERS’ RESPONSES(cont’d)

V. EMPLOYERS’ RESPONSES(cont’d)

B. Employers can require a telecommuter to sign a contract agreeing to abide by certain terms and conditions.

Approved desk Requisite lighting Certain types of chairs Require certain equipment, i.e. computers,

telephones, fax machines Consent to inspection of home prior to approval Require child care Enforce certain report-in requirements

B. Employers can require a telecommuter to sign a contract agreeing to abide by certain terms and conditions.

Approved desk Requisite lighting Certain types of chairs Require certain equipment, i.e. computers,

telephones, fax machines Consent to inspection of home prior to approval Require child care Enforce certain report-in requirements

© 2005 Snell & Wilmer L.L.P.

V. EMPLOYERS’ RESPONSES(cont’d)

V. EMPLOYERS’ RESPONSES(cont’d)

C. Employers may also require telecommuters to participate in training program.

Merrill Lynch requires participation in two-week training program.

C. Employers may also require telecommuters to participate in training program.

Merrill Lynch requires participation in two-week training program.